BILL NUMBER: S7482

SPONSOR: RYAN
 
TITLE OF BILL:

An act to amend the civil practice law and rules, in relation to waiver
of privilege

 
PURPOSE OR GENERAL IDEA OF BILL:

The purpose of this bill is to bring New York State's CPLR rule regard-
ing waiver of attorney client privilege into conformity with the federal
rule of evidence regarding waiver of attorney client privilege.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1: Creates a new section of CPLR, section 4550.

Subdivision(a) addresses material disclosed in a "federal proceeding or
to a federal office or agency." Subdivision (a) would address material
that is produced in actual or prospective New York judicial actions or
administrative proceedings.
              

Subdivision (b) traces FRE 502(b) and addresses inadvertent waiver. It
incorporates verbatim the elements contained in FRE 502(b) (1) and (2),
namely that the disclosure must be "inadvertent" and the privilege hold-
er must have taken "reasonable steps to prevent the disclosure.

Subdivision (c) tracks FRE 502(c). FRE 502(c) provides that a disclosure
of material in another forum is not a waiver if it is otherwise not a
waiver in the forum where the material is produced or, in this case,
under the proposed rule. If the court in the other forum entered an
order, that order would be respected by a New York court.

Subdivision (d) permits the court to enter an order allowing for the
parties to disclose privileged materials without creating a waiver.
Such orders and so-called "claw back" and "quick peek" provisions are
increasingly used to permit parties to exchange information and preserve
the opportunity to litigate over the privilege later.This reduces the
cost of litigation because it effectively permits the parties to deter-
mine whether the material itself is worth the effort. As in the other
provisions, subdivision (d) tracks FRE 502(d).

Section 2: effective date.

 
JUSTIFICATION:

This proposed new CPLR 4550 would codify rules with respect to the waiv-
er of privileged material. The measure is designed to parallel Rule 502
of the Federal Rules of Evidence as much as possible.  Certain modifica-
tions have been made to make the language appropriate to the CPLR and to
expand the provision to all material that is privileged under CPLR Arti-
cle 45 as well as attorney work product protected under CPLR 3101 (CPLR
3101(c) (attorney work product) and CPLR 3101(d) (2) (material prepared
in anticipation of litigation)).  FRE 502 was proposed by the Committee
on Rules of Practice and Procedure of the Judicial Conference of the
United States on September 26, 2007 and enacted by Congress on Sept. 19,
2008, by P.L.  110-322. The rule is intended to clarify the rules with
respect to inadvertent and subject matter waivers. It also permits by
agreement or court order production of material without effecting a
waiver.

This latter provision responds to the widespread concern that the liti-
gation cost necessary for privilege review, especially where electronic
material is involved, is often prohibitive. FRE 502 is designed to
"provide a predictable, uniform set of standards under which parties can
determine the consequences of a disclosure of a communication or infor-
mation covered by the attorney-client privilege or work product
protection" and to assure parties that if they enter an agreement, or
obtain a court order, providing that disclosure will not be considered a
waiver that such agreement or order will be enforced. In the years since
FRE 502 was enacted, it has played an increasingly important role given
that modern litigation often involves large volumes of electronically
stored data.

While New York has its own, and often different, set of evidence rules
from the Federal Rules of Evidence, there are some areas where uniform-
ity is necessary. Thus, when CPLR 4547 was enacted by Chapter 317 of the
Laws of 1998, it was recognized that the inadmissibility of settlement
negotiations should be identical for the state and federal
system.Likewise, waiver of privilege should, to the extent possible, be
uniform in federal and state courts.Material may be produced in one
forum but ultimately offered in the other. FRE 502 itself recognizes the
need for waiver protection to apply not just in a particular judicial
proceeding, but where offered elsewhere.

 
LEGISLATIVE HISTORY:

New bill.

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
This act shall take effect immediately.